CEO 79-76 -- November 16, 1979
CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST
SCHOOL BOARD MEMBER EMPLOYED BY COMPANY OFFERING TO SELL BUILDING TO SCHOOL BOARD
To: Jack Nooney, Chairman, Duval County School Board, Jacksonville
Prepared by: Phil Claypool
SUMMARY:
Section 112.313(7)(a), F. S., prohibits a public officer from being employed by a business entity which is doing business with his public agency and, therefore, would prohibit a school board member from being employed by a company which sells real property to the school board. While there are certain exemptions to the operation of s. 112.313(7), which are contained in subsection (12), it is apparent that none would apply in the instant situation.
As to the school board member's participation in decisions regarding alternatives to purchasing from the insurance company, attention must be directed to s. 112.3143 relating to voting conflicts of interest. In previous opinions this provision has been interpreted to require a public officer to file a memorandum of voting conflict if he votes on a measure which will inure to the gain or loss of his employer. See CEO 76-24. However, if the measure pending before the official's public body is merely procedural in nature, for example, and would not result of itself in gain or loss to the official's employer, no memorandum of voting conflict need be filed. See CEO 78-74. Therefore, whether or not a voting conflict would exist depends on the nature of the particular measures considered by the school board. Reading s. 112.3143 in conjunction with s. 286.012, F. S., the school board member may abstain from voting on matters relating to the board's decision to locate additional office space, based on the possibility of gain to his employer and the possibility of violation of s. 112.313(7).
QUESTIONS:
1. Would a prohibited conflict of interest be created were I, a school board member, to be employed by a company which sells an office building to the school board?
2. Would a voting conflict of interest be created were I to vote on a measure before the school board which might affect the possible sale to the school board of an office building from the insurance company which employs me?
Question 1 is answered in the affirmative.
In your letter of inquiry you advise that you are a member of the Duval County School Board and that you are employed as the regional director of management planning and information for a large insurance company. You also advise that in May of 1981 the lease will expire on the building which presently houses a portion of the school district's administrative personnel. Thus, the school board now is considering several alternatives which have been offered as solutions to this future problem, including two offers to build administration buildings on lease-purchase arrangements, an offer to buy or lease the current location, and offers to sell to the school board two existing buildings. One of these buildings, you advise, is the former regional office of the insurance company which employs you. Therefore, you question whether a prohibited conflict of interest would be created were the insurance company to sell its building to the school board.
The Code of Ethics for Public Officers and Employees provides in relevant part:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), F. S.]
This provision prohibits a public officer from being employed by a business entity which is doing business with his agency and therefore would prohibit a school board member from being employed by a company which is selling real property to the school board. See CEO 79-6. While there are certain exemptions to the operation of s. 112.313(7), which are contained in subsection (12), it is apparent that none of these exemptions would apply in the situation you have described.
Accordingly, we find that a prohibited conflict of interest would be created were you to be employed by an insurance company which sells an office building to the school board of which you are a member.
In question 2 of your letter of inquiry, you advise that you are concerned about your participation in decisions of the school board regarding alternatives other than the purchase of the office building which is being offered to the school board by the insurance company which employs you. For example, you advise that a work session of the board has been scheduled at which the five alternatives for housing administrative personnel will be considered.
The Code of Ethics provides in relevant part:
Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143, F. S. 1975.]
In previous opinions we have advised that this provision requires a public officer to file a memorandum of voting conflict if he votes on a measure which will inure to the gain or loss of his employer. See CEO 76-24. However, if the measure pending before the official's public body is merely procedural in nature, for example, and would not result of itself in gain or loss to the official's employer, no memorandum of voting conflict need be filed. See CEO 78-74. Therefore, the answer to the question you have posed depends upon the nature of the measure being considered by the school board. If the measure would have the effect of authorizing the purchase of the office building from the insurance company or of eliminating from consideration the purchase of that building, then a voting conflict would be created, and you would be required to file a memorandum of voting conflict (CE Form 4) if you vote on the measure. We note that if, in the decisionmaking process, the school board eliminates the possibility of purchasing the office building from the insurance company, you would not have a voting conflict in subsequent proceedings.
Regarding abstention from voting, state law provides:
Voting requirement at meetings of governmental bodies. -- No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act, and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases said member shall comply with the disclosure requirements of s. 112.3143. [Section 286.012, F. S. 1975.]
In our opinion, this provision authorizes you to abstain from voting on matters relating to the school board's decision to house its administrative personnel because of the possibility of gain to your employer and the possibility of a violation of s. 112.313(7). Similarly, if the school board eliminates a purchase of the building from the insurance company as a possibility, you would not be authorized to abstain from voting in subsequent matters as there would be no possibility of gain to you or to your employer.